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Beef Industry Issues Forums
Understanding the Business and
Consumer Climate
The Tightening Grip of Government
Environmental Action on your
Livelihood and Profitability
Overview
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Clean Water Act CAFO Rule
Clean Air Act PM NAAQS
Fine PM Implementation Rule
Possible Ammonia Regulation
Superfund
Superfund and EPCRA
Ozone NAAQS
Spill Prevention, Control and Countermeasure
(SPPC) Rule
● Oberstar and the Clean Water Act
● Global Climate Change
Clean Water Act CAFO Rule
● “Point Sources” must have NPDES permit to
discharge to waters of the U.S.
● Final CAFO rule in February 2003
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All CAFOs had Duty to Apply
Zero discharge from production area – 25 year, 24 hour
Land apply at agronomic rates
Agriculture stormwater exemption
● Appeal to 2nd Circuit Court of Appeals
● Case heard in December 2004
● Final decision in February 2005
Clean Water Act CAFO Rule
● Major holdings
– Vacated Duty to Apply
– Upheld agriculture stormwater exemption –
agronomic rates
– All NMPs must be available for public review,
comment and hearings
Clean Water Act CAFO Rule
● EPA issued proposed rule in June 2006
● Final rule expected in late Summer 2008
● Issues
– What are enforceable “terms” subject to public review?
• Should only be the most important information, otherwise
background, or included in the General Permit
• Terms
– Types and number of animals
– Storage needs and capacity
– Storage structure operation and maintenance
– Manure application rate
– Addition and Subtraction of land
Clean Water Act CAFO Rule
● Issues continued
– General Permit
• BMPs
• Setbacks
• Sampling Frequency
• Methods of Handling Mortalities
• Chemical Handling
– Background
• All Recordkeeping
• Map
• Sample procedures and results
• Method of Mortality storage prior to disposal
• Measures to prevent direct contact with waters of the U.S.
Clean Water Act CAFO Rule
● Issues continued
– What changes to terms require public review?
• Need Flexibility
• Manure Application Rate
• Addition and Subtraction of Land
– How often do operations need to report?
– Discharge or “propose to discharge”
– Double liability -- $32,500/day fine
– Ability to be released from permit at any time
● Possible additional proposed rule any day
now
Clean Water Act CAFO Rule
● Application deadline of February 27, 2009
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Six months after release of final rule
CAFOS have known NMP requirements – trust EPA
Final rules change all the time
Compliance is expensive – can’t ask producers to
speculate
• Need two years
● Release Rule Now!!
• 2008 Election year
• New Administration
● NCBA urges discharging producers to fix the
problem or get NPDES permit
• CAFOs are a target and will be for the foreseeable future
Clean Air Act PM NAAQS
● Every five years EPA must look at criteria pollutants
● Dust has been regulated for 20 years but not
enforced
● Only supposed to be regulated if substantial adverse
health effects
● No evidence that agriculture dust causes health
problems at ambient concentrations
● Urban/Rural distinction
● Proposed rule had agriculture/mining exclusion
● In October 2006, EPA issued final rule making dust
subject to regulation at unattainable level, even after
BMPs
● Precautionary Principle
Clean Air Act PM NAAQS
● Favorable preamble, urban, BMPs
– Not legally enforceable
● No codified exclusion
● Nothing in regulation to preclude states from
regulating us or citizens from bringing an
enforcement action
– Pinal County SIP
• Stated the SIP rule “shall not be construed to prevent
normal farm agricultural practices which cause fugitive
dust.”
• Rejected by EPA because it “effectively exempts
agricultural activities from the fugitive dust rules without
justification.”
Clean Air Act PM NAAQS
● Types of dust
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Tilling soil
Harvesting crops
Cattle moving
Driving on unpaved roads
Feed mixing
● Health-based standard
– Must be met at property line no matter what
– Economics do not matter
– Operations out of compliance subject to enforcement
actions and citizen suits
– Operations unable to comply after using BMPs may be
required to sell cattle
Clean Air Act PM NAAQS
● NCBA appealed final rule
– Lack of basis for regulation of dust
• Health
• Concentration level
– Cattle operations are unable to comply
– Public perception that cattle operations cause disease and
premature death, instead of just nuisance
– May end industry ability to expand – PSD increment
– CASAC suggested urban/rural distinction
– Future reviews will tighten standard
– Must be counter to anticipated environmental attacks
● Speciation study – Health Effects Institute
Fine PM Implementation Rule
● 1997 EPA separated “fine” PM (PM2.5) from “coarse”
PM (PM10)
– Differences in adverse health effects
● PM2.5 is combustion or gaseous-related materials
– Many studies show PM2.5 causes adverse health effects
● PM10 is formed by mechanical processes consisting
of minerals, crustal material, and organic debris
● After publish the NAAQS, the implementation rule
– SIP
● EPA decided to regulate “crustal” under fine PM
standard of 35ug/m3 – more stringent than PM10
– Administrative convenience
– Treats dust same as cigarette smoke
– No scientific evidence this is true
Fine PM Implementation Rule
● 80 percent of feedyard dust can be PM2.5
● Petition for reconsideration to EPA
● Appealed to D.C. Circuit Court of Appeals - Stayed
– Lack of basis for regulation of dust
• Health
• Concentration level
– Cattle operations are unable to comply
– Public perception that cattle operations cause disease and
premature death, instead of just nuisance
– May end industry ability to expand – PSD increment
– CASAC suggested urban/rural distinction
– Future reviews will tighten standard
– Must be counter to anticipated environmental attacks
Fine PM Implementation Rule
and Ammonia
● Studies show fine PM causes adverse health effects
● Ammonia as precursor to the formation of fine PM
– Ammonia, VOCs, SO2, NOx react in atmosphere
● EPA - not required to regulate all precursors the
same if basis to distinguish
– Ammonia – issues complex
• Inventories uncertain – natural and manmade sources
• Neutralizes acid in clouds, precipitation, particles
• Neutralizes sulfuric & nitric acid – acid rain components
• Problems – cause eutrophication, PM2.5
– SO2, NOx – urban areas
Fine PM Implementation Rule
and Ammonia
● Final Rule
– Ammonia presumed NOT to be attainment plan precursor
– States not required to address ammonia in SIPs
– Presumption can be reversed by States
• Case-by-case basis
• Must consider potential for increasing atmospheric and
particle acidity
● June 2007, Earthjustice appeal
– “This is a big giveaway to big agriculture, pure and simple.”
● NCBA intervened in support of EPA
– Oral argument date has not been set
Superfund
● Effort by environmentalists and active state and local officials
to subject manure to Superfund law
● If successful, manure considered hazardous waste and
pollutant
– Subject to huge penalties and cleanup costs
● Created to cleanup Love Canal and Times Beach
● Lawsuits
– City of Waco, Texas v 14 dairy operations
• Nonpoint affecting Lake Waco
• Six dairies went out of business
• Six settled out of court - $5 million attorney’s fees
• Two separately settled
– Attorney General of State of Oklahoma v Tyson, Cargill
• Nonpoint affecting Illinois River Watershed
• Hundreds of thousands of dollars in penalties/cleanup costs
• Case still pending
• Petition to disallow use of chicken litter, RCRA, waste disposal
Superfund
● If successful, similar suits throughout U.S.
● Effect may effectively outlaw use of manure as
fertilizer -- liability
● Legislation last Congress
– 191 cosponsors in the House
• Discharged from the Energy and Commerce Committee
– 36 cosponsors in the Senate
● Reintroduced this Congress
– Senator Lincoln, House Ag Chairman Peterson
– 26 Senate cosponsors, 126 House Cosponsors
– Energy Bill, had majority but not 60
• EPW Chair Boxer objected
● NCBA continues to push for passage
Superfund and EPCRA
● Emergency Planning and Community Rightto-Know Law
– Emergency Release Reporting Requirements
• Purpose to monitor “hazardous substances”
that present substantial threat to public health
– ammonia/hydrogen sulfide
» 100 pounds per 24 hour period
• Enable immediate response by state and local
emergency response officials
– NCBA tasked to determine application to cattle
– Legal analysis, White Paper to EPA 12/03, tour
Superfund and EPCRA
– Administrative exemption
• Naturally-occurring substance
• Four criteria
– Continuous, low level emissions over large area
– Rapid dispersion in environment
– Acceptable exposure risk
– Infeasibility/inappropriateness of response
• State responders do not expect to respond to animal ag
reports
– Reports burdensome/hindrance to respond to real
emergencies
– Proposed rule to exempt 12/28/07
– Final rule expected in 2008
– Likely Earthjustice Appeal
Ozone NAAQS
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NOx + VOC + Sunlight = Ozone
NOx typically product of combustion processes
VOCs emitted from CAFOs, vegetation burning, animal waste handling
and storage
In California, nonattainment areas, CAFOs must have mitigation plan
for feed, solid waste, liquid waste
Current eight hour standard .084 ppm
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Secondary standard to protect plants during growing season
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NCBA opposes tightening the ozone NAAQS
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Reactivity of VOCs – methane, ethylene
Final rule due March 12, 2008
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– Proposed rule range .070 - .075 ppm – est. cost $68-130b/yr
– Proposed cumulative weighted total of daily 12 hour exposures over three
month period – from 21 ppm hours to 7 pp. hours
– Scientific studies reinterpreted
– Crop yields increasing over past decade
Spill Prevention, Control &
Countermeasure (SPCC) Rule
● CWA requires regulations to prevent discharge of oil
from facilities including farms and feedlots
● Applies to operations that
– Store, transfer, use or consume oil or oil products
– Could reasonably be expected to discharge oil to WOUS
– If operation’s above ground capacity is greater than 1320
gallons
● Proposed rule for ag facilities issued Oct. 15, 2007
– Facility Response Plan required to be certified by a
professional engineer, unless
• Aggregate oil storage capacity is 10,000 gallons or less
– NCBA commented -- 20,000 gallons more appropriate
• No single discharge of oil to WOUS exceeding 1000 gal
for 3 yrs prior to certification
• No two discharges of oil to WOUS exceeding 42 gallons
within any 12 month period
Spill Prevention, Control &
Countermeasure (SPCC) Rule
– Whether facility that qualifies for self certification
and has no oil storage containers greater than
5000 gallons should be able to use selfcertification template
• NCBA -- capacity should be 10,000 gallons
– Definition of “facility” for “farms”
• Contiguous or noncontiguous buildings,
properties, parcels, leases structures,
installations, pipes, or pipelines may be
considered separate facilities.
– EPA will issue a compliance deadline date when
the final rule is issued in 2008
Oberstar and the Clean
Water Act
● “Waivers, Loopholes, and Rollbacks: The Republican
Contract on Clean Water”
● Federal government must renew its commitment to
have all waters meet the fishable, swimmable
standard
● Nonpoint
– One approach is HR 550 introduced in 1997
• Increased federal funding for nonpoint programs
• Required states to create and implement plans to control
nonpoint sources
• Allowed EPA to step in to implement plans where states
fail
Oberstar and the Clean
Water Act
● Wetlands
– Current definitions of waters of the United States
is “navigable waters”
– Ambiguous
– SWANCC
• Supreme Court ruled on jurisdiction over
isolated waters
• Court held that intrastate, isolated, nonnavigable waters are not covered by the Clean
Water Act based on use by migratory birds
Oberstar and the Clean
Water Act
● Rapanos
– Scalia’s limited scope of the CWA to only those waters that
are relative permanent, standing or continuously flowing
and that form geographic features
– Wetlands would have to be physically connected to
permanent waters to be covered
– Kennedy said waters would be covered if they have a
“significant nexus” with traditional navigable waters
• “wetlands possess the required nexus, and thus become
navigable waters, if the wetlands…significantly affect the
chemical, physical and biological integrity of other
covered waters more readily understood as navigable.”
Oberstar and the Clean
Water Act
● June 5, 2007, EPA and Army Corps of Engineers issued
guidance
– Will impact when permits are needed
– Traditional navigable waters are in
– Wetlands adjacent to traditional navigable are in
– Non-navigable tributaries of traditional navigable
waters that are relatively permanent (continuous flow
at least three months) are in
– Wetlands that directly abut relatively permanent
tributaries
– Others that have fact specific “significant nexus”
(defined)
Oberstar and the Clean
Water Act
● Waters not covered
– Swales or erosional features (e.g. gullies, small washes with
low volume, infrequent, or short duration flow)
– Ditches (including roadside ditches) that do not carry flow
three months of the year
– Water flows generated from rainfall events and snowmelt
● Oberstar legislation would eliminate the use of the
term “navigable waters” throughout the CWA and
replace it with “waters of the United States” to give
the CWA the broadest possible constitutional
interpretation
● Would regulate “activities affecting these waters”
● NCBA working to defeat Oberstar– success so far
– Oberstar arm-twisting with WRDA 2008 project request
process
Global Climate Change
● Studies show GHGs increasing in Earth’s
atmosphere every year
– CO2, methane, nitrous oxide
● Debate: manmade v natural causes
● New effort in Congress to address global warming
– Wide support from business community for cap-and-trade
system
– December 5, 2007, EPW reported Lieberman-Warner bill
• Establishes national economy-wide cap
– Reduce GHG emissions to 15% below 2005 levels by
2020
– Reduce by 1.8% per year to 70% below 2005 levels by
2050
Global Climate Change
• “Covered facilities” (Electric utility,
transportation, and manufacturing industries
that emit GHG from coal, petroleum fuel and
natural gas) allocated emission allowances
– An emission allowance is authorization to
emit one CO2 equivalent of GHG per year
• Early years, allowances given free, auctioned
– Other sectors also given allowances, including ag
• USDA would get 5% of Emission Allowance
Account to reduce ag emissions, and increasing
GHG sequestration
– 0.5% for reducing nitrous oxide and
methane
Global Climate Change
● Establishes formal carbon sequestration
program
– No till or reduced till systems
– Increase crop rotation intensity by eliminating
summer fallow
– Buffer strips
– Conservation measures to reduce soil erosion
– Use high residue crops like corn, sorghum, wheat
– Improve forage quality on grazing lands
– Reduce overgrazing
Global Climate Change
● Estimate that producers could receive
$2/acre for one or more of these practices
● Media attention on U.N. Food and Agriculture
Organization released report titles “Livestock
Long Shadow - Environmental Issues and
Options”
– Claimed on a worldwide level, livestock rearing
generated more GHG emissions than the
transportation industry – 18%
– EPA data shows U.S. livestock operations
superior to other countries
Global Climate Change
● EPA’s April 15, 2007 report, “Inventory of
Greenhouse Gas Emissions and Sinks: 1990-2005”
– EPA does not list livestock as a concern for CO2
– Largest emitter of methane is solid waste landfills – 24%
– Methane from enteric fermentation does not exceed .05% of
total GHG emissions
• Have declined by 3% during 1990-2005 due to decreasing
cattle pop. and high feed quality
• Pew Commission
– Nitrous oxide emitted from fertilizer, incl manure
• EPA partially attributes increase in soil carbon
sequestration to increase in use of organic fertilizer
– Polar bears and penguins
Questions?